(2021) Legalpedia (CA) 71116
In the Court of Appeal
HOLDEN AT GOMBE
Sunday, January 24, 2021
Suite Number: CA/G/419/2019
JUMMAI HANNATU SANKEY
UZO I. NDUKWE-ANYANWU
JAMES GAMBO ABUNDAGA
ALHAJI ZANNA YERIMA HAMMA WABI || ALHAJI MUKKADDAS ZANGINA
AREA(S) OF LAW
PRACTICE AND PROCEDURE
SUMMARY OF FACTS
The Claimant/Respondent claimed against the Defendant/Appellant before the High Court of Justice, Borno State, an order directing the Defendant to collect the half of the total value of cost price of the said four (4) stores with office i.e. the sum of N2, 216, 502.00 so that the Claimant shall become the sole owner of the said four (4) stores with the office situate at Bolori store. In the alternative an order directing the Defendant to pay the sum of N4, 430, 040.00 to the Claimant being money for the value of the said four (sic) with the office. The Appellant denied the claim in his statement of defence. Pleadings having been duly exchanged and issues joined, the case was set down for pre-trial conference on February 23, 2017. On the date slated for the said conference, the Appellant was not in Court and was not represented. At the onset of the proceedings of the day, the Registrar informed the Court that the Defendant’s Counsel was in Court on 07-02-17 when the case was adjourned to 23-02-17; while the Claimant’s Counsel stated that the Defendant had been served a hearing notice for that date. Based on this therefore, he applied to the Court to invoke Order 25 of the Rules of the High Court, 2012 and to enter Judgment for the Claimant. Consequently, the lower Court, by its Ruling of February 23, 2017, invoked the said order and entered Judgment for the Claimant (now Respondent). Dissatisfied with this turn of events, the Appellant with the leave of Court granted, filed an Appeal to this Court wherein he complained that the conditions precedent for the application of Order 25 Rule 6 of the High Court Rules, had not been fulfilled because there was no evidence of the substantial non-participation of the Appellant in the pre-trial or that he failed to obey a pre-trial or scheduling Order.
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ISSUES FOR DETERMINATION
Whether the appellant was afforded fair hearing by the lower court in its decision of 23/02/17.
APPEAL – PROPER PROCEDURE TO BE ADOPTED IN CHALLENGING AN ISSUE OR GROUND CANVASSED FOR DETERMINATION IN AN APPEAL
“Also, since the Respondent’s objection attacks the sole issue for determination formulated by the Appellant, it does not attack the competence of the Appeal itself to warrant the filing of a Notice of preliminary objection. Yet the law is settled that where a Respondent intends to challenge any issue or ground canvassed for determination by the Appellant, and there are other grounds and issues to sustain the Appeal, the Respondent must file a motion on notice seeking to strike out such grounds and issues”.
NOTICE OF PRELIMINARY OBJECTION – INSTANCE WHEN A PRELIMINARY OBJECTION SHOULD BE FILED
“In the instant Appeal, the contention of the Respondent is that the sole issue for determination distilled from the two Grounds of Appeal is incompetent, having not arisen from the grounds. If this contention is subsequently upheld and the sole issue for determination is struck out, it would result in peremptorily terminating the Appeal, as there would be no other issue(s) and ground(s) to sustain the Appeal. Thus, the Respondent was obliged to have filed a Notice of preliminary objection so as to put the Appellant on notice and so that it would have been taken in limine. See Bell Atlantic Telecommunications Ltd V Ndon (2018) LPELR-44431(CA) 11-12, C-A, per Saulawa, JCA (as he then was); Umanah Jnr. V NIDC (2016) LPELR-42556(SC) 7-8, E-D, per Rhodes-Vivour, JSC; Isah V INEC (2014) 1-2 SC (Pt. iv) 101; Sani V Okene LG Traditional Council (2008) LPELR-3003(SC) 9-10, E-B, per Tobi, JSC; Benue State Polytechnic, Ugbokolo V Joseph (2017) LPELR-44021(CA) 8-12, C-D, per Sankey, JCA; Nanale V FRN (2018) LPELR-44457)CA) 7, A-B, per Yahaya, JCA.
AFFIDAVIT OF SERVICE – EFFECT OF A FAILURE TO FILE AN AFFIDAVIT OF SERVICE AS REQUIRED UNDER ORDER 7 RULE 13(1) OF THE BORNO STATE HIGH COURT CIVIL PROCEDURE RULES
“The Rule states as follows – “If a party or his legal practitioner fails to attend the pre-trial order or is substantially unprepared to participate in the conference or fails to participate in good faith the judge shall:- (b) in the case of a defendant enter final judgment against him.” This should ordinarily be the end of the Appeal. However, I am mindful of the Appellant’s additional submission that the processes for service duly endorsed by his Counsel receiving same do not fulfill the requirement in Order 7 Rule 13 (1) & (2) of the Rules of the lower Court which require that in addition, an affidavit of service be filed to confirm the service of all processes of Court. Certainly, the purpose of such an affidavit is to ensure that a party is put on notice of the pending litigation – Rivers State Govt. V Specialist Konsult (2005) 5 MJSC 19, 44, G. Thus, in the instant Appeal where the Respondent has established that due service of hearing notices were effected on the Appellant through his Counsel, A. A. Sani Esq., as contained in the Additional Record of Appeal, the further filing of an affidavit of service as required in Order 7 Rule 13(1) of the Rules of Court, while desirable, its absence becomes a technical matter of procedure. ”.
TECHNICALITY – ATTITUDE OF COURTS TO TECHNICALITY VIS-A-VIS SUBSTANTIAL JUSTICE
“It has long been the position of Courts that substantial justice must rule over technicality. Thus, where there is ample documentary proof contained in the Court file transmitted by the Registrar of the lower Court, Idriss I. Garndawa AC1 (Appeal), to this Court, it becomes superfluous to insist that without a formal affidavit of service, service of a hearing notice on a party, i.e. the Appellant, has not been established. This is clearly more technical than substantial and will not address the justice of the case. The days of technicality in the application of Law and the Rules of Court are spent. Technical justice has been replaced by substantial justice in our Courts. In the case of FRN V Dairo (2015) LPELR-24303(SC) 30-32, F-E, Nweze, JSC rotundly expounded the law in these words – “Citing Order 17 Rule 2 and Order 8 Rule 1 of the Rules of the lower Court, … learned senior counsel for the appellant urged the Court to invalidate the first Respondent’s Notice of Appeal filed at the lower Court. With due respect, this entreaty to invalidate the said Notice of Appeal is an invitation to enthrone technicality over the substance of justice… We are, therefore, compelled to re-iterate the point that this Court, and indeed, any other Court for that matter, will not brook the practice where technical justice is accorded such free rein that is capable of overwhelming the substance of justice… Simply put, the wheels of justice must be at liberty, just like the chariot of juggernaut, to coast on their course, unbridled by such disingenuous manoeuvres deliberately programmed to clog their majestic movement.” See also Obasi V Mickson Establishment Inds. Ltd (2016) LPELR-40704(SC) 27, E, per Ngwuta, JSC; Abubakar V Yar ‘Adua (2008) 4 NWLR (Pt. 1078) 465, 511, per Tobi, JSC; Bello V AG Oyo State (1986) 5 NWLR (Pt. 45) 528, 886, per Oputa, JSC.
RIGHT TO FAIR HEARING – WHETHER A PARTY WHO WAS GIVEN AMPLE OPPORTUNITY TO PREPARE HIS CASE BUT FAILED TO SO DO, CAN BE HEARD LATER TO COMPLAIN OF LACK OF FAIR HEARING
“Consequently, since the Appellant was given ample opportunity to participate in the pre-trial conference and he failed to appear in Court, either in person or through his Counsel, he cannot now be heard to complain that his right to fair hearing was breached. He has been unable to establish how this right was breached by the trial Court. The Supreme Court in the case of Chami V UBA Plc (2010) LPELR-841(SC) 23, D-E, per Onnoghen, JSC (later CJN), held thus – “Fair hearing is based on opportunity to meet the case of the other party. Where a party decides not to utilize the opportunity so offered, he cannot later be heard to complain of lack of fair hearing as in the instant case.” Again, in another decision of the apex Court, FHA V Kalejaiye (2010) LPELR-1267(SC) 27, A-D, Onnoghen, JSC (later CJN) further elaborated the position of the law as follows – “It must be pointed out that the role of the Court in adjudication is to maintain a level playing field for the parties by offering them equal opportunity to present their case or grievances, if they so wish. Once the opportunity is offered, it is the duty of a party to litigation or his counsel to utilize same in accordance with the rules of procedure and substantive law. Where, however, he or his counsel fails or neglects to utilize the opportunity so offered, he cannot turn round to blame the Court for the loss of the opportunity as the Court will not allow a party to hold the opponent or the Court to ransom under the guise of the desire to protect the principles of fair hearing. To me, the right to fair hearing remains the right to opportunity to be heard on any matter affecting one’s right(s). Once the opportunity is offered, the duty of the Court ends there.” In the case cited by Counsel for the Appellant himself in his Brief of argument, SBN V Crown Star & Co. Ltd (2003) 6 NWLR (Pt. 815), it was held as follows – “Fair hearing of a case implies each side to a dispute is entitled to know what case is being made against him and be given an opportunity to reply thereto.” See also recent decisions of this Court in Stemco Ltd V Inyang (2018) LPELR-44303(CA) 13, E-F; lLeaders & Co. Ltd V Kerrie-Dee Inds, Ltd (2018 LPELR-45352(CA) 29-30, F-A; Akpadiaha V Uko (2017) LPELR-42635(CA) 43, D-F; AG Rivers State V Ude (2009) All FWLR (Pt. 347) 598, 613, E-F.
STATUTES REFERRED TO
Borno State High Court (Civil Procedure) Rules, 2012|Constitution of the Federal Republic of Nigeria, 1999 (as amended)|Court of Appeal Rules, 2016|
Auwal Idris Esq. appears for the Appellant, holding the brief of A.A. Sani Esq.|Usamatu Abubakar Esq. appears for the Respondent, holding the brief of M.S. Abubakar Esq.|
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